Arguments: Pound the facts, pound the law, pound the table?
I have frequently heard it mentioned – even in law schools, that “if you have the facts, pound the facts. If you have the law, pound the law. If you have neither, pound the table.”
Is that wise advice?
NO!
Today, let’s look at why.
Being emotive does not overcome the reality if you are on the wrong side of the facts and the law. So let’s presume for a moment, that you are. Can you still make an ethical, truthful, straight faced – yet persuasive – argument for your client?
I think so, but screaming, yelling, and pounding the table won’t do it. Candidly, it is insulting to the jury. Emotion has its place, as I’ve discussed elsewhere, but shouting and histrionics aren’t generally the way to invoke positive healthy emotions and desired actions from the jury.
Today’s clip comes from the movie Breaker Morant, and this closing argument is considered one of the all-time greats in movie history. (I’m not sure if the script is accurate to the true life argument, however). This is from a true story involving Australian soldiers who executed Boer prisoners and a German missionary during the Boer War. I’ll let you educate yourselves on that.
In this argument, defense counsel perfectly executes the techniques I described last week – use of tone, pacing, pauses, wise concessions, et al to be persuasive. He essentially argues for nullification from the military panel. He immediately concedes facts he should. His clients DID kill the prisoners.
To deny those facts would be foolish and result in lost credibility.
But he takes those facts to make a larger micro indictment of this war and macro indictment of warfare in general and the impossible expectations that are placed on soldiers. It is powerful. This clip is about 2 and a half minutes long, but you can find the entire argument online – it is about 6 minutes.
As a prosecutor, I do not like nullification arguments, but they are generally permitted and not considered unethical, even though I see them as a gross perversion of the process and truth. I also didn’t like that the lawyer turned his back on the panel; I think that’s generally a bad idea and was unnecessary from a strategic standpoint here. But we can’t deny the power of his argument … and he never raises his voice.
Now, on our next episode of T&T, I will show you how to use a rebuttal argument from real life that utterly destroys the very argument and set of assertions made in this clip. So stay tuned for that.
And if you think this kind of information is valuable and would like more and greater detail in training specifically for your firm or organization, we’re ready to talk about how we can support you. Contact us.
